380 F. Supp. 3d 1290
S.D. Fla.2019Background
- Plaintiff slipped on pooled water aboard Defendant's cruise ship and sued for negligence; discovery deadline Oct 2, 2019 and trial set for Feb 2020.
- Plaintiff served a Rule 30(b)(6) deposition notice with topics including incident investigation, policies/procedures, prior pipe bursts and elevator maintenance/repairs for the voyage and prior year.
- Defendant produced Monica Petisco for the December 13, 2018 deposition but did not designate her for several noticed topics, raised objections for the first time that morning, and she was unprepared (had not reviewed claim/incident reports).
- Parties attempted a continued corporate deposition in February 2019; Defendant produced Joshua Manloloyo (chief plumber) who likewise was unprepared beyond his limited personal knowledge; the deposition was prematurely terminated when witnesses had to leave.
- Court found multiple Rule 30(b)(6) violations: untimely objections, failure to prepare designees, and unilateral termination; Plaintiff moved for sanctions including default or alternatively a finding that notice of the hazardous condition is established.
- Court granted sanctions in part: precluded Defendant from presenting testimony/exhibits on the topics for which its designees failed to provide testimony and held that notice of the hazardous condition is established; denied default judgment; allowed briefing on attorneys’ fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Defendant violate Rule 30(b)(6) by producing unprepared or improperly designated witnesses? | Carnival produced unprepared designees, raised objections belatedly, and terminated deposition early — constitutes nonappearance and Rule 30(b)(6) violation. | Notices were overbroad and objectionable; Plaintiffs could have narrowed topics; continuation cured any defects. | Violation found: untimely objections, unprepared designees, and unilateral termination violated Rule 30(b)(6) and Rule 37. |
| Are extreme sanctions (default/dismissal) appropriate? | Plaintiff sought default or striking pleadings given prejudice and obstruction. | Defendant implied shortcomings were not willful and could be remedied; continuation and additional witnesses were offered. | Default denied. Court requires willfulness/bad faith, prejudice, and that lesser sanctions be inadequate; lesser sanctions available. |
| Should the court remedy Plaintiff's prejudice by establishing notice of the hazardous condition? | Plaintiff argued she was deprived of discovery on notice and thus should get an adverse finding on notice element. | Defendant opposed drastic adverse inference/default. | Court ordered that notice of the hazardous condition is established as a sanction (preclusion of contrary evidence), but case must still proceed on remaining elements. |
| Are fees and costs warranted for the discovery misconduct? | Plaintiff sought fees and costs incurred in pursuing the motion. | Defendant argued objections and conduct may be justified or not sufficiently egregious. | Court authorized fee briefing and ordered conferral; fees may be awarded under Rule 37(d) unless substantially justified. |
Key Cases Cited
- Continental Cas. Co. v. First Fin. Empl. Leasing, Inc., 716 F. Supp. 2d 1176 (M.D. Fla. 2010) (corporation must prepare 30(b)(6) designee beyond personal knowledge using reasonably available sources)
- Brazos River Auth. v. G.E. Ionics, Inc., 469 F.3d 416 (5th Cir. 2006) (Rule 30(b)(6) preparation obligation extends beyond matters personally known to the designee)
- Resolution Trust Corp. v. Southern Union Co., Inc., 985 F.2d 196 (5th Cir. 1993) (failure to properly designate under Rule 30(b)(6) can justify sanctions/nonappearance findings)
- Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275 (3d Cir. 2000) (unprepared 30(b)(6) witness is no more present than one who sleeps through deposition)
- QBE Ins. Corp. v. Jorda Enter., Inc., 277 F.R.D. 676 (S.D. Fla. 2012) (failure to properly designate a Rule 30(b)(6) witness may warrant sanctions, including preclusion)
- King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995) (corporate designee must be prepared; unprepared witness does not satisfy Rule 30(b)(6))
- Stern v. O'Quinn, 253 F.R.D. 663 (S.D. Fla. 2008) (work-product protection does not shield factual content from being elicited via deposition)
- Inmuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561 (S.D. Fla. 2001) (standard for imposing dismissal/default for discovery abuses requires willfulness, prejudice, and lack of adequate lesser sanctions)